Consultation Paper on Inchoate Offences - Law Reform Commission

iv)An unequivocal act approach requires the act to unambiguouslybear its criminal intent on its face.2.08 The first three approaches impose liability at different pointsalong the range between beginning to act on an intention to commit a crimeand completing that crime; the proximate act lying somewhere in betweenthe first and last acts. The unequivocal act approach differs in that it is notrange-based. Rather, it expects the act to have an intrinsic quality. Theunequivocal act approach is perhaps best understood as motivated by aconcern to have an actus reus of attempt that confirms the mens rea. Thus, itis said that under the unequivocal act approach the primary purpose ofhaving an “act” requirement is evidential. The act confirms that the mind isindeed a guilty one. The first three approaches are mutually exclusive in thatit would be incoherent to combine the first and last act approaches with eachother. Nor would it make sense to combine either the first or last actapproaches with the proximate act approach. But the unequivocal actapproach can coherently be combined with any one of the others.(b)(i)Actus reus of attempt in IrelandProximity theory in Ireland2.09 In The People (Attorney General) v Sullivan 7 the Supreme Courtheld that the defendant could rightly be tried for attempting to obtain moneyby false pretences. The defendant was a midwife who was contracted to bepaid a basic salary for attending 25 births in a year. For additional birthsbeyond 25 she would get additional pay. She had submitted some reports offictitious births. There was no evidence whether she had reached orexceeded the 25 mark. Accordingly, the Court assumed, in her favour, shehad not. The question was whether she had done enough at this point(having submitted just three false reports) to be guilty of an attempt giventhat she would in the end receive the extra pay only if her reported caseswithin the contract year exceeded 25? Were her actions attempt rather thanmere preparation? In answering yes, the Court held that each and every falseclaim submitted was “sufficiently proximate” to committing the substantiveoffence in order to constitute the physical element of attempt. 82.10 This decision is seen as a straightforward application of proximitytheory, 9 which holds that the act done towards the target offence must beclose to completion of the target offence in order to be a criminal attempt.Indeed, Walsh J, speaking for the Supreme Court in Sullivan, stated what he789[1964] IR 169.Thus, the Supreme Court affirmed the conclusion of Teevan J in the High Court.Charleton, McDermott and Bolger Criminal Law (Butterworths 1999) at 274.23